A Delaware prenuptial agreement, also known as a “premarital agreement” or “prenup,” is a document signed by prospective spouses to delineate asset division in the event of divorce. Effective upon marriage, it can only be altered or revoked with written confirmation from both parties.
This agreement outlines the rights and responsibilities of each party concerning their financial assets, debts, and other related affairs While prenuptial agreements are often associated with the division of marital property, they can also address issues such as spousal support, inheritance rights, and other financial matters.
Legal Considerations
Laws:
- § 321 – Definitions
- § 322 – Formalities
- § 323 – Content
- § 324 – Effect of marriage
- § 325 – Amendment or revocation
- § 326 – Enforcement
- § 327 – Enforcement; void marriage
- § 328 – Limitation of actions
Signing Requirements: The agreement must be in written form and bear the signatures of both parties. It is enforceable without consideration (Del. Code tit. 13 § 322).
Dividing Property: Equitable division (Del. Code tit. 13 § 1513).
Enforceability Requirements
- Essential Terms for Validity: In writing, signed by both parties voluntarily, and executed before the marriage takes place.
- Terms to Exclude: The agreement should not be unconscionable or overly one-sided. Provisions that are illegal or against public policy cannot be enforced. Enforceability also hinges on the absence of coercion and access to complete financial records. While it is advisable for both spouses to have independent counsel during the process, state law does not require it as long as the agreement is otherwise fair and equitable.
- Additional Requirements: Full and fair disclosure of assets, debts, and financial obligations is crucial for the agreement’s validity.
